Sunday, 20 March 2011

Sunday, 20 March 2011

Mandates, bon de visits & paperwork

Before an agent is able to market the property in France on behalf of a client, they need to have their formal consent, and this normally is covered in the “mandat de vente”.

This is normally, but not always, on a non-exclusive basis, allowing the vendor to sell privately or via another agency. This document details the vendors, the property to be sold, the asking price and the agency fees.

When as a buyer, you view property via an agency, it is standard practice to sign a “bon de visite”, in fact it is a legal requirement to do so. This document lists the buyer’s details, summarises in brief the properties to be visited etc.

It demands that the client will deal with the agency for any negotiations for the properties listed. This ensures that the agency will be paid any commission that they are due resulting from the sale.

Sometimes, buyers try to be devious, and go behind the agents’ back, in an attempt to save fees. They are still liable if they are taken to task, and if the buyers is proven to be an accomplice, they are also liable.

This was the recent decision of the French Supreme Court (Cour de Cassation) in a case that came before them. They found that the estate agents had been formally instructed by the sellers on the sale of their property, for which they had a written contract (mandat de vente). The buyer and vendor tried to avoid the agency fees and deal directly with each other, with the vendor even cancelling the mandat. Although the contract had been terminated by the seller, the terms still required they pay the agent’s commission for potential buyers introduced to them up the end of the contract period. The commission continued to be payable for a period of 18 months for any clients who had been introduced to the seller up to expiration of the contract. By dealing directly with a introduced by the agent during this period, the court deemed that the seller had committed a breach of contract.

The commission payment due under the contract was 15,400€ and as the court considered that this sum was not excessive and reasonably justified, it was due by the seller.The court also examined the responsibility of the buyer in this particular matter. It found that they had dealt with the seller directly less than 2 months after having been introduced to the property by the agent. The court ruled that the buyer could not escape their responsibility for the commission by arguing that they were not party to the contract between the seller and the agent, since they had signed a ‘bon de visite’ which bound the buyer to deal irrevocably with the agent in their dealings with the seller. On this basis the buyer was equally complicit with the seller in defrauding the agent of their commission. As a result, the court found that the buyer and vendor were equally liable for the payment of damages.

Don't try to cut out the middle man - you have been warned !

Peter Elias (Agent Commercial)

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